Submission

Summary of the matter addressed in the submission:

The Submitters assert that the United States is failing to effectively enforce the federal Clean Water Act against coal-fired power plants for mercury emissions that are allegedly degrading thousands of rivers, lakes and other waterbodies across the United States. The Submitters assert that the number of fish consumption advisories for mercury has risen from 899 to 2347 since 1993, and that, according to the U.S. Environmental Protection Agency, 35% of the total lake acres and 24% of the river miles in the U.S. are now under fish consumption advisories. They contend that the U.S. Environmental Protection Agency (USEPA) “is allowing both nonpoint and point source discharges of mercury from coal-fired power plants that are contributing to a steady degradation of the nation’s waterways as evidenced by increasing mercury fish advisories and the effective withdrawal of existing uses (fishable) of many of these water bodies.” According to the Submitters, these discharges include both air emissions of mercury that fall back to the earth in the form of precipitation or as dry particles and direct discharges to water. The Submitters assert that mercury discharges to air and water contravene provisions of the Clean Water Act enacted to prevent degradation of national waters, in National Pollutant Discharge Elimination System (NPDES) provisions under section 402 of the CWA and Water Quality Standards provisions under section 303 of the CWA. They assert that the United States, through the EPA, is failing to effectively enforce these provisions by issuing NPDES permits or delegating the issuance of State Pollutant Discharge Elimination System (SPDES) permits that allow for ongoing point source discharges of mercury into U.S. waterways; approving inadequate state antidegradation policies and implementation procedures that fail to safeguard water bodies; and failing to use its authority to require states to pass Total Maximum Daily Loads (TMDLs) for mercury where WQS are not being met or a beneficial use has been lost, and to issue its own TMDLs where state action is inadequate.

Summary of the response provided by the Party:

In its response, the U.S. acknowledges that mercury is a highly persistent, toxic pollutant that accumulates in the food chain and that humans are exposed to methylmercury primarily by eating contaminated fish. The U.S. asserts that it has taken significant steps to reduce domestic mercury air emissions in response to these health risks and that Clean Air Act (CAA) rules finalized in March 2005 on air emissions of mercury from coal-power plants will further significantly reduce emissions and address the Submitters’ core concern. The U.S. asserts that the increase in fish consumption advisories that the Submitters document is due in large part to steps the U.S. Environmental Protection Agency (EPA) is taking to address mercury contamination in water and does not necessarily indicate that the levels or frequency of mercury contamination are increasing, or any failure to effectively enforce environmental laws. The U.S. states that the Submitters’ assertions regarding Total Maximum Daily Loads (TMDLs) under the CWA are misplaced in that TMDLs are planning tools and do not regulate sources. The U.S. states that the CWA provides no regulatory mechanism to control nonpoint source pollution, such as air emissions from coal-fired power plants. With respect to the Submitters’ assertions regarding the antidegradation program under the CWA, the U.S. states that State antidegradation policies serve to protect water quality when point sources of pollution are being permitted and that the CWA does not authorize EPA to regulate, or compel States to regulate, nonpoint sources of pollution. With respect to Submitters’ allegations regarding EPA’s implementation of the NPDES program under the CWA, the U.S. asserts that the CWA does not prohibit point source discharges to an impaired waterbody and describes EPA’s actions to date and plans for the future to improve monitoring and permitting of mercury discharges to water. The U.S. states that EPA commits to reviewing closely the renewal of the approximately 40 permits identified by Submitters for coal-fired power plants that have reported significant discharges of mercury to water. The U.S. states that its regulatory efforts directed at emissions of mercury from coal-fired power plants under the CAA and the CWA reflect a reasonable exercise of its regulatory discretion and that the present situation with regard to mercury emissions from coal-fired power plants in the U.S. is a legally complex situation that is dynamic and improving. The U.S. also asserts that the Submitters’ allegations are the subject of pending judicial and administrative proceedings and that therefore, the Secretariat should proceed no further with the submission. The U.S. asserts that there are ample private remedies available under U.S. law to address the issues raised by the Submitters.

On 30 September 2005, the Secretariat of the Commission for Environmental Cooperation (CEC) of North America received from the United States supplemental information regarding submission SEM-04-005 (Coal-fired Power Plants), filed with the Secretariat on 20 September 2004. The new information supplements the United States’ response to the submission, filed on 25 April 2005.

The supplemental information provides updates on administrative and judicial proceedings that were initiated since the filing of the United States’ response to the submission to challenge three rules promulgated under the Clean Air Act: the Section 112 rule, the Clean Air Mercury Rule and the Clean Air Interstate Rule. The United States asserts that these recent proceedings provide further reason for dismissing the submission due to pending judicial and administrative proceedings and the availability of private remedies.

Names and citations of the environmental laws in question:

Clean Water Act (CWA); National Pollutant Discharge Elimination System provisions under section 402 of the CWA and Water Quality Standards provisions under section 303 of the CWA.

Submitter(s):

Friends of the Earth Canada, Friends of the Earth-U.S., Earthroots, Centre for Environmentally Sustainable Development, Great Lakes United, Pollution Probe, Waterkeeper Alliance, Sierra Club (U.S. and Canada), represented by: Waterkeeper Alliance and Ecojustice (formerly Sierra Legal Defence Fund)